State v. Barnett

Appeal
from the Criminal Court for Shelby County No. 17-01791 John
Wheeler Campbell, Judge

Following
a trial, a Shelby County jury found Defendant, Gary Barnett,
guilty of rape of a child and aggravated sexual battery, for
which he received an effective sentence of thirty years'
incarceration in the Tennessee Department of Correction. On
appeal, Defendant contends that: (1) the trial court erred in
admitting into evidence the forensic interview of the victim;
(2) the trial court erred in restricting defense
counsel's cross-examination of two witnesses; and (3) the
evidence is insufficient to support his convictions.
Following a thorough review, we affirm the judgments of the
trial court.

Robert
L. Holloway, Jr., J., delivered the opinion of the court, in
which Alan E. Glenn and Robert H. Montgomery, Jr., JJ.,
joined.

OPINION

ROBERT
L. HOLLOWAY, JR., JUDGE

I.
Factual and Procedural Background

Pretrial
Motion Hearing

On
April 13, 2017, the Shelby County Grand Jury indicted
Defendant for rape of a child and aggravated sexual battery.
The State subsequently filed a motion to admit the
victim's forensic interview at trial pursuant to
Tennessee Code Annotated section 24-7-123. At a hearing on
the motion, the victim, C.M., [1] testified that she was thirteen
years old and in the eighth grade. She explained that
Defendant was her grandfather by marriage. C.M. recalled
that, during October 2016, she spent part of her fall break
with Defendant at his residence. Following her visit, C.M.
was interviewed by Teresa Onry at the Memphis Child Advocacy
Center. C.M. explained that the interview with Ms. Onry was
recorded. She noted that she was wearing the same shirt at
the hearing that she wore during her interview with Ms. Onry.
She agreed that, when she spoke to Ms. Onry, Ms. Onry asked
her questions, and they talked about things that happened
with Defendant. C.M. stated that she previously viewed the
recording of her conversation with Ms. Onry, that she
recalled her conversation with Ms. Onry, and that she told
Ms. Onry the truth. C.M. identified a DVD of her recorded
interview with Ms. Onry, saying that she placed her initials
on the DVD after viewing it in the prosecutor's office.
The DVD was marked for identification as Exhibit 1. C.M.
agreed that she would testify truthfully if called to testify
at trial.

On
cross-examination, C.M. testified that she was living with
her father, stepmother, brother, and sister in October 2016.
She agreed that, in the recorded interview, she and Ms. Onry
spoke about C.M.'s family and about her biological
mother. She agreed she told Ms. Onry that her biological
mother "had a baby on the way[.]" C.M. explained
that she last spoke to her biological mother "two
summers" before the incident that occurred in October
2016. C.M. denied that she ever spoke to her biological
mother about the allegations made against Defendant. C.M.
stated that she only spoke about the allegations against
Defendant one time before her interview with Ms. Onry and
"that was at the Rape Crisis Center." She stated
that she did not speak to police before the recorded
interview with Ms. Onry.

Teresa
Onry testified that she was a forensic interviewer employed
by the Memphis Child Advocacy Center. Ms. Onry confirmed that
she conducted an interview with C.M. on October 12, 2016. Ms.
Onry explained that, prior to her employment at the Child
Advocacy Center, she graduated from Tennessee State
University with a degree in psychology, and she worked for
over eight years at the Tennessee Department of
Children's Services. Ms. Onry testified that she had
completed the minimum training requirements to work as a
forensic interviewer, that she had learned the Corner House
Protocol method of forensic interviewing, and that she had
actively participated in peer review with regard to her
interviews. Ms. Onry explained that the first step of the
Corner House Protocol was to build a rapport with the child
by talking about things that the child liked to do. She
stated:

You [then] want to move into where you're talking about
family, that type of thing. Then you go into whether
something has happened. You're exploring whether
there's going to be a disclosure or not. And at the end,
you give the child an opportunity to give any more
information. It's basically the closing of the interview.

Ms.
Onry confirmed that she had followed this protocol while
interviewing C.M.

Ms.
Onry testified that she reviewed the DVD containing the
recorded interview with C.M. before the hearing. She
identified Exhibit 1 and stated that it contained the
recorded interview she conducted of C.M. on October 12, 2016.
Ms. Onry stated that the recording contained the entire
interview with C.M., that it was unaltered, and that it truly
and accurately depicted C.M.'s complete interview.

On
cross-examination, Ms. Onry acknowledged that, although C.M.
stated the abuse had been ongoing "for about four
years," C.M. only specifically discussed one incident
that occurred a few days before the forensic interview. Ms.
Onry agreed that C.M. did not provide contextual details for
earlier alleged incidents. Ms. Onry confirmed that forensic
interviewers were not supposed to ask leading questions and
that a leading question was a question "that ask[s] a
child to give a response that the question suggest[s]."
When asked about specific questions posed to C.M., Ms. Onry
denied asking C.M. any leading questions. Ms. Onry testified
that her questions to C.M. were merely "follow-up
questions," to which she could have said either yes or
no. Ms. Onry explained:

[T]he purpose of this interview is to . . . make sure the
child gives a best possible statement of her experience.
There are going to be times when those types of questions are
asked, and again, my asking that question doesn't suggest
to her that this is something that did happen or . . . [that]
she should agree with me.

Following
the hearing, the trial court found that the recorded forensic
interview was "admissible based on the statute" and
that Ms. Onry satisfied the statute and was qualified as a
forensic interviewer. The trial court also noted that, at the
hearing, the parties stipulated that the Memphis Child
Advocacy Center satisfied the relevant statute's
requirements. After viewing the recorded forensic interview,
the trial court entered a written order, finding
"nothing that would . . . prohibit it from being
admissible based on the statute[.]"

Jury
Trial

At
Defendant's subsequent trial, Sandra Gunter testified
that she had been married to Defendant from 1990 until 1998,
when they divorced. Ms. Gunter stated that C.M. was her
granddaughter. Ms. Gunter testified that, in 2012, C.M.'s
father and stepmother were having marital problems, and C.M.
and C.M.'s father moved in with Ms. Gunter and Defendant,
who was renting a room in Ms. Gunter's home on Daneman
Street. C.M.'s father lived in the residence for about a
month and then moved in with two friends. Ms. Gunter
explained that C.M.'s father decided it would be best for
C.M. to continue living with Ms. Gunter at that time.
Eventually, C.M.'s father and stepmother "made
amends[, ]" and C.M. began living with her father,
stepmother, and sister until their house was destroyed by a
fire in February 2015. At that time, C.M. and her family
moved back in with Ms. Gunter in her home, and Defendant
moved to an assisted living facility. In May 2015, after
C.M.'s stepmother had a baby, C.M.'s family moved to
Millington, and Ms. Gunter moved in with her brother, who
lived in Somerville.

Ms.
Gunter recalled that, in October 2016, she was living in
Somerville and working as a hairstylist at Custom Cuts. On
the morning of October 8, 2016, she received a telephone call
from C.M., while on the way to work. Ms. Gunter recalled that
it was around 6:45 or 7:00 a.m. and "extremely
early" for C.M. to be calling her on a Saturday morning.
Ms. Gunter testified that C.M. was "very, very
upset" and "was crying hysterically[.]" Ms.
Gunter recalled that C.M. was calling from Defendant's
cell phone. Ms. Gunter testified:

She was screaming, "Meemee[2] you've got to come get me,
I'm very upset[.]" [S]he was just crying and
uncontrollably sobbing. And I didn't understand and I
said, "Baby, what's wrong?" And she said,
"Meemee I need you, I need you now and something's
happened and I'm hurt" and she was rambling, you
know.

C.M.
told Ms. Gunter that she was at Defendant's residence.
When Ms. Gunter told her that she had to go to work, C.M.
continued to cry uncontrollably and said, "[D]o you
remember . . . that thing that you always told me if someone
touched me, or hurt me, that I should tell you[?]" C.M.
told Ms. Gunter that she had locked herself inside
Defendant's truck and that she was scared.

Ms.
Gunter testified that she drove to Defendant's apartment
and found C.M. hiding behind a dumpster in the parking lot.
C.M. was "shaking" and "extremely upset."
Ms. Gunter returned the cell phone to Defendant and took C.M.
home. On the drive home, C.M. told Ms. Gunter that Defendant
"had hurt her and that she was scared[.]" C.M.
said, "I can't do this anymore." Once home,
C.M. told her father, stepmother, and Ms. Gunter that
Defendant "had held her down and raped her." They
immediately called police and were instructed to take C.M. to
the police station. They were then escorted to the Rape
Crisis Center.

Ms.
Gunter stated that, during the time that C.M. lived with her
and Defendant, Defendant would babysit C.M. after school
because Ms. Gunter had to work late. Ms. Gunter recalled a
"very inappropriate" occasion when she came home
from work and found Defendant "shirtless" sitting
on the couch; C.M. was sitting behind Defendant rubbing his
back. Ms. Gunter further recalled that Defendant often bought
C.M. things "when he couldn't even afford
it[.]"

On
cross-examination, Ms. Gunter stated that she and Defendant
remained on good terms after their divorce and that he moved
in with Ms. Gunter because of his health problems, sometime
between 2010 and 2012. She explained that Defendant had a
heart attack in 1999 and agreed that he had arthritis,
asthma, COPD, diabetes, and hypertension. She confirmed that
Defendant took a lot of medication and did not work due to
his health problems. Ms. Gunter testified that Defendant was
in the hospital several times from 2010-2012 but stated that
"he loved to go to the hospital for pain shots."

Ms.
Gunter testified that C.M.'s biological mother had
custody of C.M. until C.M. was five years old. C.M.'s
father and stepmother then obtained custody of C.M. until
they separated and C.M. and C.M.'s father moved in with
Ms. Gunter. C.M.'s father stayed for about a month before
moving out and leaving C.M. in the care of her grandmother.
After C.M.'s father and stepmother "got back
together[, ]" C.M. returned to live with them until the
fire destroyed their house. Ms. Gunter acknowledged that she
had instructed C.M. that, if anyone touched her
inappropriately, C.M. should immediately tell her about it.
She agreed that the first time C.M. told her about
Defendant's abuse was on October 8, 2016.

C.M.
testified that she was born on June 3, 2004, and that she was
fifteen years old at the time of trial. C.M. explained that
she had considered Defendant her grandfather during the time
of the alleged abuse. C.M. recalled that, when she was eight
and nine years old, she lived with Ms. Gunter and Defendant
at the house on Daneman Street. She explained that, during
the school week, Defendant would watch her after school until
6:00 or 8:00 p.m., depending on the day of the week.

C.M.
recalled the first time that Defendant touched her
inappropriately. She explained that "it was like a nice,
sunny day" and that she walked home from school. When
she got home, Defendant told her to come into his bedroom. He
then instructed her to get on the bed and take off her pants
and underwear. C.M. testified that Defendant then put his
fingers inside her vagina and "rubbed." She
recalled that it hurt and that Defendant was rubbing on both
the inside and outside of her vagina. Defendant told C.M.
that, if she ever told anyone, he would hit her and that she
would "go to jail." C.M. explained that Defendant
continued to touch her in this manner "[f]requently,
mostly every day." C.M. recalled another incident when
Defendant told her to "get on [her] hands and knees on
the bed[.]" She stated that Defendant got on his knees
behind her and put his penis inside her vagina. She also
recalled that Defendant had her touch his penis with her
hand, stating that she and Defendant were sitting on his bed
and that Defendant's pants were "down to his knees
and his underwear was down and he had me touch his [penis]
with lotion." C.M. said that the lotion came from a
dresser in Defendant's bedroom and that, after she
touched his penis, white "[s]tuff came out" of it.
C.M. recalled that, on other occasions, Defendant put his
mouth on her vagina while they were at the house on Daneman
Street. She stated that these events occurred during the
afternoons before her grandmother got home from work.

C.M.
testified that she continued to see Defendant after he moved
to North Lake Apartments, an assisted living facility, on
weekends or during school breaks and that the sexual abuse
continued during these visits. She stated that, in October
2016, she was visiting Defendant during her fall break. She
explained that she went to his residence to "help
[Defendant] out with his walking." After having dinner,
Defendant told C.M. that he was going to touch her and that
she "couldn't stop him." C.M. recalled that
Defendant tried to take off her pants but that she would not
let him, and she eventually went to sleep. When she woke up,
Defendant was on top of her, and his penis was in her vagina.
She recalled feeling "pressure" and stated that her
pants and underwear were "down to [her] knees" and
that it hurt. C.M. testified that she pushed Defendant off of
her and locked herself inside the bathroom for two to three
hours. Defendant attempted to unlock the door with a knife
but was unable to do so. C.M. explained, "[T]hen he left
me alone and then after a while I came out and then he took
me to breakfast." C.M. recalled that, while returning
from breakfast in Defendant's truck, Defendant said that
he was "going to touch [her] all through this
week." When they returned to his residence, Defendant
got out of the truck, leaving his cell phone behind. C.M.
locked herself inside the truck. C.M. testified that
Defendant came back outside and told her that she needed to
come inside. He also hit the window "really hard, trying
to break it[.]" Defendant told C.M. that he was going to
break it and drag [her] through if [she] didn't come
inside." When Defendant went back inside his residence,
C.M. got out of the truck, hid behind a dumpster, and called
Ms. Gunter. She told Ms. Gunter to "come get [her]"
and that "I can't do this anymore." C.M.
recalled having a medical examination performed by a nurse
and participating in the recorded interview with Ms. Onry
about her allegations. She affirmed that she told the truth
while speaking to Ms. Onry.

On
cross-examination, C.M. stated that she could recall the
first instance of sexual abuse but did not know the
particular day, week, or month that it occurred. She agreed
that Defendant was not "very active" and that,
eventually, he could not "get around" well. She
also agreed that Defendant needed help because of his health
problems and that she and Ms. Gunter had helped take care of
him.

During
cross-examination, defense counsel asked C.M. if she had ever
"told a lie" after "swearing an oath to tell
the truth." C.M. responded, "Not that I know
of." The State then requested a bench conference, where
the following exchange occurred:

[THE STATE]: I'm not actually sure, based on those
Juvenile Court records that [C.M.] testified in Court. I
don't have any record, I don't have a transcript, or
any way to. . . .

THE COURT: What I saw [in the Juvenile Court records], I
could not tell, clearly, I mean do y'all have a
transcript of her testimony[?] You have an order that
doesn't make a lot of sense.

[DEFENSE COUNSEL]: What we can show you Judge is the page

that indicates she did testify, if you would like for me
to-THE COURT: Well, let me ask you this, it says she did
testify, does it say what she said?

[DEFENSE COUNSEL]: No.

THE COURT: Well then, I don't think you can cross-examine
on what ...

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